Gail Wilensky, PhD, delivered the keynote address, “The Future of the Affordable Care Act and Medicare Payment Reform,” at the 2017 Medical Legal Summit—an annual event co-sponsored by the Academy of Medicine of Cleveland & Northern Ohio (AMCNO), the Academy of Medicine Education Foundation, and the Cleveland Metropolitan Bar Association (CMBA). It was held March 24-25 at the CMBA Conference Center.

Prior to Dr. Wilensky’s keynote presentation, opening remarks were provided by Dr. Robert E. Hobbs, AMCNO President and Summit Co-Chair; Marlene Franklin, Esq., Associate General Counsel at MetroHealth Medical Center and Summit Co-Chair; and Richard Manoloff, Esq., CMBA President. The Health Care Law Update took place earlier in the afternoon, prior to the keynote presentation. Among the topics covered during that session were: “Safety Net Providers: Law and Public Policy,” and “Managing Risk in Employing Foreign Nationals: At the Crossroads of Health Care, Labor and Employment, and Immigration,” which was presented by Isabelle Bibet-Kalinyak, McDonald Hopkins LLC. Ms. Bibet-Kalinyak had recently written an article on this topic for the AMCNO’s March/April Northern Ohio Physician magazine.

At the time of the Summit, the American Health Care Act (AHCA) was still being debated. Keynote speaker Dr. Wilensky stressed that regardless of the outcome, there is still a need for bipartisan support, for passing any type of legislation. She discussed the unique makeup of the new governing body—Republicans now control Congress and the White House, but they are without a filibuster-proof majority in the Senate. This means that the Republicans need some Democratic support, or they will have to use the budget reconciliation process, which comes with challenges as well. Her advice to the Senate Republicans, especially concerning the Affordable Care Act (ACA), is to find something that they think could garner bipartisan support, and work on that.

It is clear that the ACA needs to change, Dr. Wilensky said, stressing that in year 4, “exchanges are still in churn, and one-third of counties in America are left with one insurer in the exchange.” And, the Congressional Budget Office (CBO) had predicted 18 million in exchanges by 2017; so far this year only 12.1 million have signed up. She did say that “the unsung hero” has been the success of Medicaid expansion plans that have pulled in numbers of the uninsured. And “this population has been absorbed without the churn and without stress in the system,” she said.

Dr. Wilensky said she sees many “mistakes” related to ACA policy. “As a public policy person, I’m not going to trash anything that substantially increases people with insurance coverage—that is a good thing.” But mistakes have happened along the way in previous administrations, she said, where Republicans had opportunities that they did not follow through on, such as limiting the age-band to 3:1 instead of 5:1; allowing 26-year-olds to stay on their parents’ policy after Jan. 1, 2014; guaranteeing future coverage without penalties; and lenient “special enrollment” rules.

One strategy is to repair or reform the ACA, she said. Politics never allowed this as an option—Republicans spent 2010-2016 vowing to repeal and replace it, particularly conservative Republicans. Legislation that is passed on a partisan basis is rarely stable, however, she said. Medicare was passed with bipartisan support, even though conservative Republicans and southern Democrats were against it. The new legislation, however, has a deep political partisan divide.

Republications have adopted a “three-bucket strategy,” Dr. Wilensky said, one of which is fast-track a bill, as they did with the AHCA. She said a better strategy, however, would have been to let both the Senate and the House pass something and then come to a reconciliation later. The other strategy is changing regulations and other administrative changes. The Administrative Procedures Act puts in many safeguards and processes to be followed in changing regulation and has to be consistent with the statute Congress is trying to implement. The Centers for Medicare & Medicaid Services (CMS) has to write rules and regulations, which is not a fast process. And the final strategy is a separate legislative package for other changes, such as malpractice reform, selling insurance across states, etc. This strategy requires 60 Senate votes.

She discussed proposed legislation introduced by Senators Bill Cassidy (R-LA) and Susan Collins (R-ME), which would keep some ACA provisions but not all. States would have three options:

Continue with the ACA, with the same funding for Medicaid (95% of premium subsidies).

Four Republican governors who expanded Medicaid in their respective states, including Ohio Gov. John Kasich, also proposed legislation focusing on Medicaid reforms, wanting to maintain support for their expanded Medicaid programs. They proposed that states should be offered two options: convert federal funding to a per capita grant or funding for nondisabled/nonelderly to a block grant, or keep the current system but reduce the federal share.

The real problem, Dr. Wilensky said, is that no Democrats support the AHCA; some Democrats have denounced Sens. Cassidy and Collins. But, she stressed that it is clear that stable legislation needs to have bipartisan support. “If the Republicans jam through a bill without the Democrats, it will be no more successful or stable than the ACA,” she concluded.

Ms. Costello discussed several items, including reporting timelines and Meaningful Use (MU) measures for 2017-18 for MACRA, the Merit-based Incentive Payment System (MIPS) and reporting options, the significance of the Composite Performance Score (CPS), and the Advanced Alternative Payment Models (APMs).

Dr. Pitluck talked about how HSAG is a partner in improving healthcare quality. Nearly 25% of the nation’s Medicare beneficiaries fall under the HSAG’s Quality Innovation Network-Quality Improvement Organization (QIN-QIO) territory. He discussed how research indicates that quality has improved through electronic health records and MU reporting. Advancing Care Improvement has replaced MU, and it is not “all or nothing.” Dr. Pitluck also talked about health information technology and its impact.

Dr. Furno focused on the Quality Payment Program, which will reform Medicare Part B payments for more than 600,000 clinicians, and improve care across the entire healthcare delivery system. He then discussed the two tracks, MIPS and Advanced APMs, in more detail.

Mr. Shannon shared information on overdose deaths from 2006-2017 for all categories. In 2014, fentanyl was introduced into Cuyahoga County. There was a “catastrophic rise” in deaths in 2016, he said, and only 2 months into 2017, the projections are very high for deaths this year compared to last year. Ninety-five percent of all fatalities involve more than one drug and/or alcohol. He mentioned that Project DAWN, spearheaded by AMCNO member Dr. Joan Papp, has increased the number of lives saved.

Dr. Labor talked about how addiction is a brain disease, and she gave an easy-to-understand description of how each part of the brain is affected by addiction. She said that medical providers, law enforcement and others are focusing on the drug, not the disease. The goal of treatment should be to restore the frontal cortex—where behavioral therapy works—once it’s been “hijacked” by the midbrain, where the drugs and alcohol work. She said she would like to see a shift in the current crisis—to treat the disease of addiction and work on prevention.

Ms. Darden discussed the Organized Crime Drug Enforcement Task Force Unit, which was created in 2013, and is a four-point model: law enforcement, education and prevention, healthcare policy and treatment. She said her office focuses on “big players,” such as drug dealers and cartels. She cited the example of how they recently prosecuted Brandon Wagner for selling illegal drugs to Cory Cooke, who then died from an overdose. Wagner received a sentence of 12½ years in a federal prison. Not many prosecutors are taking on these cases, but the Cleveland unit is. The penalties are stiff to send a message to drug dealers who are ruining communities and lives, she said. She also said the task force is placing an emphasis and resources on prevention, talking to schools and parents, for example, on the effects of drugs.

The final plenary session was about lawsuits—how to avoid or survive them, from a medical/legal perspective. Panelists were AMCNO member Dr. John Bastulli, St. Vincent Charity Medical Center; The Honorable Nancy McDonnell, Cuyahoga Co. Court of Common Pleas; and R. Eric Kennedy, Esq., Weisman, Kennedy & Berris Co, LPA.

Dr. Bastulli, who is also the AMCNO’s VP of Legislative Affairs, said that the medical community promotes a culture of safety. “We have made strides in the last 15 years in reducing medical errors,” he said. Malpractice suits can be stressful for physicians, but he offered a few suggestions in the event a physician is summoned for a case, such as don’t contact the patient and don’t alter the medical record. He said injured patients should be compensated fairly if they are truly harmed.

Mr. Kennedy has been asked to represent physicians in addition to the one that is hired by a physician’s insurance company. He tells physicians to “take [the case] personally”— they must decide whether they were right or wrong, if they met the standard of care. He also tells them “not to take it personally”—they’re going to have bad results, it’s nature, it’s medicine.

He added that medical malpractice filings are down—about 25% of what they were 10 years ago. Judge McDonnell said that malpractice cases in the county are down as well. The panelists agreed that tort reform has had a major impact.

The panelists also agreed that practice guidelines and standard of care are more important in lawsuits, rather than policies.

Following the final plenary on Saturday was a breakout session with two options: “Medical Marijuana,” or “Legal Issues in the Care of the ‘Vulnerable Patient.’”

The Medical Marijuana session was moderated by Dr. Hobbs and Ms. Bibet-Kalinyak, and featured two presenters: Dr. Jerry Mitchell, a member of the Ohio Medical Marijuana Advisory Panel, and Ms. Cassandra L. Manna, Esq., from Roetzel & Andress, LPA.

Dr. Mitchell noted that cannabis is a substance shrouded in political conflict, and, depending on one’s inclination, it would be possible to present either an anti-cannabis or pro-cannabis position with the data that presently exists in the literature. He provided information on the known effects of marijuana, and he noted that there have been no randomized trials done on marijuana because it is classified as a Schedule I drug. He also provided background on HB 532, which was signed into law in Ohio in 2016. It established a framework for marijuana cultivation, processing, dispensing and recommending marijuana. He stated that rules are currently being written for this legislation by the Departments of Commerce, Pharmacy and the State Medical Board.

Ms. Manna provided an overview on some of the legal aspects of the new law. She noted that a key point for physicians to remember is that if they are recommending medical marijuana to patients, they are issuing a “recommendation” versus a prescription. If physicians write a prescription for marijuana, it would be for a Schedule I drug, and under federal law, the Drug Enforcement Administration could revoke their license, so physicians need to make a “recommendation.” Medical marijuana can be recommended for 21 qualified medical conditions, and there is a statute that allows for other medical conditions to be added to the list, so the list can expand in the future.

Ms. Manna also briefly discussed how employers do not have to permit or accommodate an employee’s use of medical marijuana, and that employers may wish to consider establishing a zero-tolerance policy so they have one in place. She also indicated that all of the rules have to be completed by Sept. 8, 2017, so that may be a good time to review what is in the rules and then look at what policies hospitals and physician offices have in place.

In the other breakout session, Chuck Corea, In-House Attorney at the Cuyahoga County Board of Developmental Disabilities, discussed “vulnerable patients.” He said 40% of patients have a disability or behavioral health issue. He talked about applicable Ohio Revised Code sections and definitions that cover this population, such as competent, incompetent, neglect, abuse, and emergency guardianships. He also discussed supported decision-making, which is an alternative to guardianship and involves the use of friends, family members, and professionals to help these patients understand the medical situations and choices they face. The discussion concluded with case scenarios.

More than 200 Northern Ohio physicians and attorneys registered for this annual event, and both organizations appreciate their attendance. The AMCNO and CMBA especially thank the event sponsors for their generous support, as well as the planning committee and presenters for their hard work and sharing their expertise.

The planning committee will be meeting in the near future to discuss next year’s agenda. AMCNO members are encouraged to participate, submit topics and suggest presenters for the Summit. Contact Elayne Biddlestone at ebiddlestone@amcnoma.org or (216) 520-1000, ext. 100, for more information.